| People v Carmichael |
| 2014 NY Slip Op 04693 [118 AD3d 603] |
| June 24, 2014 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Brian Carmichael, Appellant. |
Richard M. Greenberg, Office of the Appellate Defender, New York (Sara Gurwitchof counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Deborah L. Morse of counsel), forrespondent.
Order, Supreme Court, New York County (Roger S. Hayes, J.), entered on or aboutDecember 14, 2012, which denied defendant's CPL 440.10 motion to vacate a judgmentof conviction rendered December 10, 2007, unanimously affirmed.
The motion court correctly rejected defendant's claim of ineffective assistance ofcounsel. Defendant has not established that any of his trial counsel's alleged errors oromissions resulted in prejudice under the state or federal standards (see People vBenevento, 91 NY2d 708, 713-714 [1998]; see also Strickland vWashington, 466 US 668 [1984]).
Regardless of whether counsel should have sought to suppress defendant's statementon the ground of violation of the right to counsel, defendant has not shown a reasonableprobability that such a claim would have been successful. Under all the circumstances,defendant's comments that "maybe" he should talk to a lawyer did not constitute anunequivocal request for counsel (see Davis v United States, 512 US 452, 459[1994]; People v Wilson, 93AD3d 483 [2012], lv denied 19 NY3d 978 [2012]).
Regardless of whether counsel should have made a more detailed attempt to establisha prima facie case of discrimination pursuant to Batson v Kentucky (476 US 79[1986]), defendant has not shown that such efforts would have ultimately resulted in theseating of any jurors peremptorily challenged by the prosecutor. In any event, defendanthas not shown that any Batson violation resulted in an unfair jury (seeMorales v Greiner, 273 F Supp 2d 236, 253 [ED NY 2003]).
Defendant has not established that his counsel's decision not to call certain potentialwitnesses deprived defendant of a fair trial or had a reasonable probability of affectingthe outcome of the case. At best, these witnesses would have suggested an innocentexplanation for minor portions of the prosecution's case. Moreover, the submissions onthe 440.10 motion establish that counsel made a strategic decision not to call thesewitnesses, and we conclude that [*2]this strategy did notfall below an "objective standard of reasonableness" (Strickland, 466 US at688).
Defendant's challenges to the prosecutor's opening statement and summation are notcognizable by way of a CPL 440.10 motion, and are without merit in any event.Concur—Sweeny, J.P., Renwick, Andrias, Saxe and Kapnick, JJ.